Jack Robert Smith v. Patton State Hospital

Filing 13


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 v. 12 13 Case No. EDCV 17-1594-JFW (KK) JACK ROBERT SMITH, ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND PATTON STATE HOSPITAL, et al., Defendants. 14 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Jack Robert Smith (“Plaintiff”), proceeding pro se and in forma 20 pauperis, has filed a Second Amended Complaint (“SAC”) against Defendant 21 Harry Oreol (“Defendant”) in his individual capacity for violations of Plaintiff’s 22 Fourteenth Amendment rights under 42 U.S.C. § 1983 (“Section 1983”). For the 23 reasons discussed below, the Court dismisses the SAC with leave to amend. 24 /// 25 /// 26 /// 27 /// 28 /// 1 II. 2 BACKGROUND 3 On July 27, 2017, Plaintiff constructively filed1 a civil rights complaint 4 alleging defendant Patton State Hospital violated his Fourteenth Amendment 5 rights to substantive due process and to be free from “cruel and unusual 6 punishment [and] torture.” ECF Docket No. (“Dkt.”) 1 at 4. On August 11, 2017, the Court dismissed Plaintiff’s complaint with leave to 7 8 amend for failure to state a claim. Dkt. 6, Order. 9 On August 17, 2017, Plaintiff constructively filed a First Amended 10 Complaint (“FAC”) against Defendant in his individual capacity, claiming that 11 “[a]s a result of Harry Oreol[’]s[] negligence, [Plaintiff] [was] being ‘robbed of 12 [his] Constitutional rights.’” Dkt. 9 at 7 (emphasis omitted). On August 30, 2017, the Court dismissed Plaintiff’s FAC with leave to 13 14 amend for failure to state a claim. Dkt. 11, Order. On September 8, 2017, Plaintiff constructively filed the instant SAC against 15 16 Defendant, the Executive Director of Patton State Hospital, in his individual 17 capacity, for violating Plaintiff’s substantive due process rights under the 18 Fourteenth Amendment. Dkt. 12 at 2, 4, 7. Plaintiff alleges Defendant “has acted 19 with intentional[,] malicious[, and] reckless disregard of [Plaintiff’s] constitutional 20 rights.” Id. at 2. According to the SAC, Plaintiff is being “hospitalized although [he] [is] ‘not 21 22 mentally ill, not dangerous & [he] [is] not receiving any treatment.’” Id. at 7 23 (emphasis omitted). Plaintiff alleges the “conditions of [his] confinement are 24 25 26 27 28 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating “mailbox rule applies to § 1983 suits filed by pro se prisoners”); Williamson v. Flavan, No. CV 08-3635-R (JEM), 2009 WL 3066642, at *3 (C.D. Cal. Sept. 21, 2009) (applying “mailbox rule” to civilly committed individuals). 2 1 1 ‘unjustifiabl[y] oppressive[,] dangerous & cruel’ because [d]ay after day, [he is] 2 ‘forced to live with some abusive heartless staff that bully [him], 3 verbally/mentally/physically abuse [him], force medicate [him], lie in reports & 4 retaliate against [him] for reporting them.’” Id. Plaintiff alleges Defendant “has 5 been made aware of these complaints through ‘letters directly to him, through [t]he 6 Program Director, [t]he Medical Director, Patient’s Rights & [t]he Joint 7 Commission.’” Id. Plaintiff further alleges Defendant is “‘intentionally punishing 8 [Plaintiff] & putting [Plaintiff’s] health, wellbeing & safety in danger’ by ‘ignoring 9 & refusing to resolve all of the following complaints that [Plaintiff] ha[s] repeatedly 10 brought to [Defendant’s] attention.’” Id. Plaintiff claims Defendant “never 11 ‘reprimands or fires the hospital staff’” and is therefore “‘enabling them’ to 12 continue subjecting [Plaintiff] to this ‘unethical abusive behavior on a daily basis.’” 13 Id. 14 Plaintiff concludes “[a]s a result of [Defendant’s] negligence, [Plaintiff’s] 15 ‘health, wellbeing & safety is put in danger.’” Id. Plaintiff seeks compensatory 16 and punitive damages. Id. at 5. 17 III. 18 STANDARD OF REVIEW 19 As Plaintiff is proceeding in forma pauperis, the Court must screen the SAC 20 and is required to dismiss the case at any time if it concludes the action is frivolous 21 or malicious, fails to state a claim on which relief may be granted, or seeks 22 monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 23 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 24 In determining whether a complaint fails to state a claim for screening 25 purposes, the Court applies the same pleading standard from Rule 8 of the Federal 26 Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to 27 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 28 668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a 3 1 “short and plain statement of the claim showing that the pleader is entitled to 2 relief.” Fed. R. Civ. P. 8(a)(2). 3 A complaint may be dismissed for failure to state a claim “where there is no 4 cognizable legal theory or an absence of sufficient facts alleged to support a 5 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 6 considering whether a complaint states a claim, a court must accept as true all of 7 the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th 8 Cir. 2011). Although a complaint need not include detailed factual allegations, it 9 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 10 that is plausible on its face.’” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) 11 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 12 (2009)). A claim is facially plausible when it “allows the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 14 1004. The plausibility standard “requires more than labels and conclusions, and a 15 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (1997). 17 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se 18 complaint, however inartfully pleaded, must be held to less stringent standards 19 than formal pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 20 (9th Cir. 2008). However, liberal construction should only be afforded to “a 21 plaintiff’s factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. 22 Ct. 1827, 104 L. Ed. 2d 339 (1989), and the Court need not accept as true 23 “unreasonable inferences or assume the truth of legal conclusions cast in the form 24 of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 25 If the court finds the complaint should be dismissed for failure to state a 26 claim, the court has discretion to dismiss with or without leave to amend. Lopez v. 27 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted 28 if it appears possible the defects in the complaint could be corrected, especially if 4 1 the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 2 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint 3 cannot be cured by amendment, the court may dismiss without leave to amend. 4 Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th 5 Cir. 2009). 6 IV. 7 DISCUSSION 8 9 A. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT CONDITIONS OF CONFINEMENT CLAIM AGAINST 10 DEFENDANT 11 (1) 12 Under the Fourteenth Amendment, a civilly-committed person may be APPLICABLE LAW 13 subjected “to the restrictions and conditions of the detention facility so long as 14 those conditions and restrictions do not amount to punishment or otherwise violate 15 the Constitution.” Bell v. Wolfish, 441 U.S. 520, 536-37, 99 S. Ct. 1861, 60 L. Ed. 16 2d 447 (1979). A government action constitutes punishment if “(1) the action 17 causes the detainee to suffer some harm or ‘disability,’ and (2) the purpose of the 18 governmental action is to punish the detainee.” Demery v. Arpaio, 378 F.3d 1020, 19 1030 (9th Cir. 2004) (citing Wolfish, 441 U.S. at 538 (“A court must decide 20 whether the disability is imposed for the purpose of punishment or whether it is but 21 an incident of some other legitimate governmental purpose.”)). 22 Under what is often called the first prong of the analysis for government 23 punishment, the harm or disability “must either significantly exceed, or be 24 independent of, the inherent discomforts of confinement.” Id.; see Wolfish, 441 25 U.S. at 537 (“Loss of freedom of choice and privacy are inherent incidents of 26 confinement in such a facility.”). 27 The second prong of the analysis—an improper government purpose—can 28 be demonstrated by showing the conditions are “expressly intended to punish” or 5 1 serve an “alternative, non-punitive purpose” that is “excessive in relation to that 2 alternative purpose.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004); see 3 Endsley v. Luna, 750 F. Supp. 2d 1074, 1100 (C.D. Cal. 2010), aff’d, 473 F. App’x 4 745 (9th Cir. 2012). 5 (2) ANALYSIS 6 Here, Plaintiff appears to allege a Fourteenth Amendment conditions of 7 confinement claim against Defendant. However, despite specific instructions from 8 the Court, Plaintiff has again failed to include sufficient facts to state a conditions 9 of confinement claim.2 First, Plaintiff has not alleged specific facts showing Defendant’s action 10 11 caused Plaintiff to suffer harm or disability that “either significantly exceed[ed], or 12 [was] independent of, the inherent discomforts of confinement.” Demery, 378 13 F.3d at 1030. Instead, Plaintiff generally and conclusorily alleges “[a]s a result of 14 [Defendant’s] ‘failure to act’” Plaintiff is “living in fear, deprived of [his] life & 15 liberty, suffering endless amounts of frustration, stress, uncertainty & robbed of 16 [his] constitutional rights.” Dkt. 12 at 7. Such allegations do not “significantly 17 exceed . . . the inherent discomforts of confinement.” Demery, 378 F.3d at 1030; 18 see Daniel v. City of Glendale, No. CV14-3864 VAP (AJW), 2015 WL 5446924, at 19 *7-8 (C.D. Cal. Mar. 19, 2015) (finding a detainee taken “out of his comfort of 20 freedom,” sharing “personal space with convicted criminals, gang members, and 21 strangers,” not receiving soap to wash his hands until the next day, and not being 22 able to take unspecified medication for an unspecified illness did not amount to 23 24 25 26 27 28 In the Court’s August 30, 2017, Order Dismissing FAC With Leave to Amend, the Court specifically focused on Plaintiff’s conditions of confinement claim and detailed deficiencies in his allegations, stating, “Plaintiff fails to identify any specific action that Defendant took that ‘amount[ed] to punishment or otherwise violate[d] the Constitution.’” Dkt. 11 at 5-6. “Additionally, while Plaintiff conclusorily claims he is suffering because his health and safety are in danger, he failed to identify a specific harm caused by actions taken by Defendant.” Id. at 6. 6 2 1 punishment). Hence, Plaintiff fails to allege sufficient facts to satisfy the first prong 2 of a conditions of confinement claim. Second, Plaintiff has not alleged specific facts showing Defendant’s purpose 3 4 was to punish Plaintiff. Instead, Plaintiff conclusorily states “[Defendant] is 5 ‘intentionally punishing [Plaintiff] & putting [his] health, wellbeing & safety in 6 danger’ by ignoring & refusing to resolve all of the . . . complaints that [Plaintiff] 7 ha[s] repeatedly brought to [Defendant’s] attention.” Dkt. 12 at 7. “[A] formulaic 8 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 9 555. Hence, Plaintiff fails to allege sufficient facts to satisfy the second prong of a 10 conditions of confinement claim. Blanas, 393 F.3d at 932. Therefore, Plaintiff’s Fourteenth Amendment conditions of confinement 11 12 claim must be dismissed. See Demery, 378 F.3d at 1030. If Plaintiff chooses to 13 pursue this claim in an amended complaint, he must, at a minimum allege specific, 14 non-conclusory facts establishing (1) a specific harm or disability that “either 15 significantly exceed[s], or [is] independent of, the inherent discomforts of 16 confinement” and (2) Defendant’s action were “expressly intended to punish” or 17 “excessive” in relation to an “alternative, non-punitive purpose.” See id. For 18 example, to the extent possible, Plaintiff should identify specific facts regarding 19 who inflicted the specific harm, what specific harm was inflicted, when the specific 20 harm was suffered, and where the specific harm occurred. 21 B. PLAINTIFF FAILS TO STATE A FOURTEENTH AMENDMENT 22 FAILURE TO PROTECT CLAIM AGAINST DEFENDANT 23 (1) 24 “Involuntarily committed patients in state mental health hospitals have a 25 Fourteenth Amendment due process right to be provided safe conditions by the 26 hospital administrators.” Ammons v. Wa. Dep’t of Soc. & Health Servs., 648 F.3d 27 1020, 1027 (9th Cir. 2011); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 852 28 n.12, 118 S. Ct. 1709, 140 L. Ed. 2d 1043 (1998) (“The combination of a patient’s APPLICABLE LAW 7 1 involuntary commitment and his total dependence on his custodians obliges the 2 government to take thought and make reasonable provision for the patient’s 3 welfare.”). Under the Fourteenth Amendment, state officials are required to “take 4 steps in accordance with professional standards to prevent harm from occurring,” 5 and must not “act (or fail to act) with conscious indifference.” Ammons, 648 F.3d 6 at 1029-30. “[L]iability may be imposed for failure to provide safe conditions ‘when the 7 8 decision by the professional is such a substantial departure from accepted 9 professional judgment, practice, or standards as to demonstrate that the person 10 responsible actually did not base the decision on such a judgment.’” Id. at 1027 11 (quoting Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S. Ct. 2452, 73 L. Ed. 2d 12 28 (1982)). The professional judgment standard is an objective standard, and it 13 equates “to that required in ordinary tort cases for a finding of conscious 14 indifference amounting to gross negligence.” Id. at 1029; see also Castro v. Cty. of 15 L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc) (holding the “objective standard” 16 applies to failure to protect claims under the Fourteenth Amendment for pretrial 17 detainees). “Th[e] ‘conscious indifference’ standard is not the same as the 18 ‘deliberate indifference’ standard used in the Eighth Amendment cruel and 19 unusual punishment context and extended to alleged violations of pre-trial 20 detainees’ rights under the Fourteenth Amendment.” Ammons, 648 F.3d at 1029. 21 To sufficiently state a failure to protect claim, a plaintiff must allege facts “to 22 show that defendants knew of any threats to his safety or deviated from 23 professional standards by disregarding known unsafe conditions.” Cranford v. 24 Ahlin, 610 F. App’x 714, 714 (9th Cir. 2015)3 (citing Ammons, 648 F.3d at 1029- 25 30); see also Chester v. De Morales, No. CV-09-4256 DMG (JC), 2011 WL 26 1344571, at *5 (C.D. Cal. Feb. 10, 2011) (“[P]laintiff presents no evidence . . . that 27 28 The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1, 2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App. P. 32.1(a). 8 3 1 defendant . . . failed to protect plaintiff from ‘known threats to patient safety.’” 2 (emphasis in original)), aff’d, 478 Fed. App’x 466 (9th Cir. 2012). 3 (2) ANALYSIS 4 Here, to the extent Plaintiff raises a Fourteenth Amendment violation for 5 failure to protect, he does not allege sufficient facts. Despite instructions from the 6 Court, Plaintiff has failed to include specific facts for a failure to protect claim.4 (a) 7 Plaintiff fails to allege any facts supporting Defendant knew 8 of threats to Plaintiff’s safety before any incident 9 Plaintiff conclusorily alleges Defendant “has been made aware of 10 [Plaintiff’s] complaints through ‘letters directly to [Defendant], through [t]he 11 Program Director, [t]he Medical Director, Patient’s Rights & [t]he Joint 12 Commission.” Dkt. 12 at 7. Plaintiff’s general and conclusory allegations are 13 insufficient to enable the Court to determine what, if anything, Defendant knew 14 before any incident occurred. See Chester, 2011 WL 1344571, at *5 (“[P]laintiff’s 15 only direct communication with [defendant] consisted of letters written after the . . 16 . [a]ttack.”); Cranford v. Ahlin, No. 1:14-CV-01131-MJS (PC), 2014 WL 6669230, 17 at *2 (E.D. Cal. Nov. 24, 2014) (“Plaintiff’s conclusory statement that all of the 18 ‘Defendants’ were aware of his complaint is insufficient to state a claim.”), aff’d, 19 610 F. App’x 714 (9th Cir. 2015); id. (“Plaintiff has not alleged facts to show that 20 Defendant . . . was aware that he was assaulted or at risk for further assaults.”). 21 Absent facts showing Defendant (1) “knew of any threats” to Plaintiff’s safety 22 before any incident, or (2) “deviated from professional standards by disregarding 23 known unsafe conditions” after Plaintiff informed Defendant of specific 24 complaints, Plaintiff is simply relying on blanket assertions, which do not state a 25 26 27 28 In the Court’s August 30, 2017, Order Dismissing FAC With Leave to Amend, the Court specifically focused on Plaintiff’s failure to protect claim and detailed deficiencies in his allegations, stating, “Plaintiff has not provided any facts to show that Defendant ‘knew of any threat’ to Plaintiff’s safety or ‘deviated from professional standards by disregarding known unsafe conditions.’” Dkt. 11 at 7. 9 4 1 claim for relief. See Cranford, 610 F. App’x at 714 (“The district court properly 2 dismissed [plaintiff]’s action because [plaintiff] failed to allege facts sufficient to 3 show that defendants knew of any threats to his safety or deviated from 4 professional standards by disregarding known unsafe conditions.”). (b) 5 Plaintiff fails to allege specific further harm to Plaintiff through Defendant’s inaction after knowledge of abuse 6 7 Plaintiff alleges Defendant “intentionally, maliciously refused to resolve any 8 complaints that [Plaintiff] ha[s] made.” Dkt. 12 at 7 (emphasis added). However, 9 Plaintiff’s conclusory allegations do not provide the Court with any facts that 10 would show Defendant’s inaction caused any further harm to Plaintiff. See 11 Cranford, 2014 WL 6669230, at *2 (“It also is unclear whether Plaintiff suffered 12 further assaults after his complaints, and thus whether Defendant . . . may be said 13 to have failed to protect Plaintiff from such further assaults.” (emphases added)). Plaintiff implies he continues to suffer from abuse every day. Plaintiff states 14 15 Defendant “never ‘reprimands or fires the hospital staff’” and is therefore 16 “enabling” the hospital staff “to continue subjecting [Plaintiff]” to “abusive 17 behavior on a daily basis,” and “forc[ing] [Plaintiff] to live with some abusive 18 heartless staff that bully [Plaintiff], verbally/mentally/physically abuse [Plaintiff],5 19 force medicate [Plaintiff],6 lie in reports & retaliate against [Plaintiff] for reporting 20 them.”7 Dkt. 12 at 7. However, Plaintiff fails to allege any specific facts showing 21 22 23 24 25 26 27 28 Plaintiff does not provide any specific facts as to the verbal, mental, or physical abuse. 6 Plaintiff does not provide any specific facts pertaining his general claim of force medication. However, issues with medication in a state mental health hospital may not state a due process violation (i.e., a failure to protect) if the decision is based on professional judgment. See Sharp v. Weston, 233 F.3d 1166, 1171 (9th Cir. 2000) (“Although the state enjoys wide latitude in developing treatment regimens, the courts may take action when there is a substantial departure from accepted professional judgment or when there has been no exercise of professional judgment at all.”). 7 Plaintiff does not include any specific facts pertaining to lying in reports and retaliation against Plaintiff for reporting. See Rhodes v. Robinson, 408 F.3d 559, 10 5 1 abuse occurred after Defendant knew of his complaints, or what specific ongoing 2 harms continued because of Defendant’s inaction. Cf. OSU Student All. v. Ray, 3 699 F.3d 1053, 1073 n.15 (9th Cir. 2012) (“[I]nvoluntarily committed psychiatric 4 patient stated due process claim against hospital administrators for failing to 5 provide safe conditions through knowledge and acquiescence.” (emphases added) 6 (citing Ammons, 648 F.3d at 1026)). 7 Therefore, Plaintiff’s Fourteenth Amendment failure to protect claim must 8 be dismissed. If Plaintiff chooses to pursue this claim in an amended complaint, he 9 must, at a minimum allege specific, non-conclusory facts establishing (1) Defendant 10 knew of specific threats to Plaintiff’s safety and (2) specific harm occurred to 11 Plaintiff after Defendant’s knowledge. To the extent possible, Plaintiff should 12 provide specific information (e.g., who, what, when, and where) regarding how 13 Defendant became aware of a specific threat; what specific threat Defendant was 14 informed of; and what specific harm Plaintiff later suffered. 15 V. 16 LEAVE TO FILE A THIRD AMENDED COMPLAINT 17 For the foregoing reasons, the SAC is subject to dismissal. As the Court is 18 unable to determine whether amendment would be futile, leave to amend is 19 granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 20 curiam). 21 22 23 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the service date of this Order, Plaintiff choose one of the following two options: 1. Plaintiff may file a Third Amended Complaint to attempt to cure the 24 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a 25 blank Central District civil rights complaint form to use for filing the Third 26 Amended Complaint, which the Court encourages Plaintiff to use. 27 28 567-68 (9th Cir. 2005) (setting forth the elements of a retaliation claim for filing prison grievances and pursuing civil rights litigation in courts). 11 1 If Plaintiff chooses to file a Third Amended Complaint, Plaintiff must clearly 2 designate on the face of the document that it is the “Third Amended Complaint,” 3 it must bear the docket number assigned to this case, and it must be retyped or 4 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 5 include new defendants or new allegations that are not reasonably related to the 6 claims asserted in the Complaint. In addition, the Third Amended Complaint must 7 be complete without reference to the SAC, FAC, Complaint, or any other pleading, 8 attachment, or document. 9 An amended complaint supersedes the preceding complaint. Ferdik v. 10 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will 11 treat all preceding complaints as nonexistent. Id. Because the Court grants 12 Plaintiff leave to amend as to all his claims raised here, any claim raised in a 13 preceding complaint is waived if it is not raised again in the Third Amended 14 Complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 15 The Court advises Plaintiff that it generally will not be well-disposed toward 16 another dismissal with leave to amend if Plaintiff files a Third Amended Complaint 17 that continues to include claims on which relief cannot be granted. “[A] district 18 court’s discretion over amendments is especially broad ‘where the court has 19 already given a plaintiff one or more opportunities to amend his complaint.’” 20 Ismail v. Cty. of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (quoting 21 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987)); see also 22 Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Third Amended Complaint 23 with claims on which relief cannot be granted, the Third Amended Complaint 24 will be dismissed without leave to amend and with prejudice. 25 Plaintiff is explicitly cautioned that failure to timely file a Third 26 Amended Complaint will result in this action being dismissed with prejudice 27 for failure to state a claim, prosecute and/or obey Court orders pursuant to 28 Federal Rule of Civil Procedure 41(b). 12 1 2. Alternatively, Plaintiff may voluntarily dismiss the action without 2 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court 3 is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 4 encourages Plaintiff to use. 5 6 7 8 9 Dated: October 11, 2017 HONORABLE KENLY KIYA KATO United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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